JUDGMENT
Mahmood Ali Khan, J.
S. No. 1782/2002
1. Counsel for defendant No. 4 has stated that written statement was filed only yesterday. It has not been added to the record. Counsel for defendant No. 4 shall check up with the registry and will ensure that it is added to the file. Counsel for plaintiff has pressed for cost for accepting the written statement, which is not in terms of the order dated 28.5.2003. Subject to payment of Rs. 2,000/-, the written statement filed by defendant No. 4 shall be taken on record. Cost shall be paid on the next date. Replication to the written statement of defendants No. 1 to 3 has not been filed. Replication shall be filed by the plaintiff within four-weeks. Parties shall file original documents within four weeks and appear before the joint Registrar on 11th November, 2003 for admission/denial of the documents thereafter the case shall be listed before the court for framing of the issues on 25th November, 2003. IA 6182/2003
2. Application is filed defendant No. 2 for deleting his name from array of the defendants. Suit is filed by the plaintiff for permanent injunction and recovery of damages for publication of defamatory, disparaging advertisement and other leaflets by the defendant injuring the reputation of the plaintiff. Reading of the plaint discloses that the plaintiff has made allegations that defendant No. 2 has also been responsible for the publication of the defamatory and disparaging advertisement as Managing Director of defendant No. 1 company. There are also allegations that orally as well as by the publication of the leaflets, the defendants, including defendant No. 2, were causing disparagement and defamation of the reputation of the plaintiff and are liable for payment of damages and to be restrained from doing so by an injunction.
3. Counsel for defendant/applicant conversely has submitted that defendant No. 2 is only a Managing Director, stationed at Aurangabad in West Bengal and the advertisement and leaflets, if any, was published by the office of the defendant No. 1 at Delhi but the leaflets were allegedly circulated in Haryana. It was, therefore, submitted that defendant No. 2 is not a necessary or proper party to the proceeding and his name should be deleted.
4. A reading of the allegations made in the plaint clearly shows that the plaintiff has also made allegations against the defendant No. 2 for publication of the defamatory advertisement as well as publication and circulation of defamatory leaflets and also orally defaming the plaintiff. The relief of ad interim injunction as well as for damages prayed has also been claimed against defendant No. 2.
5. At this stage it will not be possible to decide whether defendant No. 2 is responsible for the publication of the disparaging and defamatory advertisement or issue of leaflets etc. or defaming the plaintiff because this question will require evidence for decision but there are allegations against defendant No. 2 and the relief of injunction and damages is also claimed against defendant No. 2, therefore defendant No. 2 is necessary party. His name can be deleted only when the court finds that he is neither necessary nor proper party to the suit and in his absence also the subject-matter of the suit can be decided completely and effectually. In view of the positive case pleaded against him and the relief of injunction and damages claimed against defendant No. 2, it cannot be held at this stage that the suit can be completely and effectually decided in his absence. It is a different question that the plaintiff fails to establish its case against defendant No. 2 after trial.
6. There is no merit in the application. It is dismissed. IA 10197/(O. 39, R. 1 & 2, CPC)
7. Renotify for hearing on the next date.